What Happens if a Democratic House Votes to Impeach Kavanaugh?

The FBI’s supplemental background check of Supreme Court nominee Brett Kavanaugh has just been completed. We don’t yet know what, if anything, was uncovered beyond what we already knew—or whether anything in the report will change votes in the Senate. Indeed, we may never even know what’s in the report, given contradictory statements by GOP senators as to whether the findings, or at least a summary of them, will be made public.

What we do know is that the background check, which was supposed to examine all credible allegations of sexual assault made against Kavanaugh, has made matters more complicated. For reasons that aren’t completely clear—either the Senate’s actual request for supplemental information was narrower than promised, or the White House directed the FBI not to pursue certain leads—many senators are worried that the Republican-guided FBI investigation won’t be sufficient to quell concerns about the judge’s fitness to serve on the Supreme Court.

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If the investigation has been as superficial as some reporting suggests—despite calls from GOP Senators Jeff Flake, Lisa Murkowski and Susan Collins for it to be thorough—and if Kavanaugh does manage to squeak through, Democrats are not likely to let it go. Indeed, it is entirely possible—no, likely—that, if they win control of the House of Representatives in November, the new majority party will consider articles of impeachment against Kavanaugh before his seat on the high court is warm. The course of such a proceeding has the potential to be so perilous and unpredictable that wavering Republican senators should consider that possibility before casting their votes to put Kavanaugh on the court in the first place. Facts that come to light in impeachment could come back to haunt senators who vote to support him.

So how would impeaching a Supreme Court justice work, exactly?

The Constitution contemplates removal from office of judges on the same terms as are available against any federal official—terms that are by now familiar because they’re so frequently mentioned against Trump. Under Article II, section 4: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” In all cases, the House investigates and votes on articles of impeachment, and any articles that receive a majority vote are then passed along to the Senate. That body then conducts a trial, and a supermajority of two-thirds is required for removal of the officer.

Although there have been only a tiny number of impeachment proceedings against federal judges at any level since the Constitution was ratified, those that have taken place have laid down significant markers that can help us understand the possibilities in this case.

According to the Brennan Center for Justice, only 15 federal judges have been impeached in the nation’s history. Of those, only eight were convicted and removed from office. When it comes to the Supreme Court, there’s barely any history at all— only one justice, Samuel Chase, was impeached in the House, and the Senate fell far short of removing him from the bench. He ended up serving on the high court until he died, in 1811. These few cases, though, should be enough to get the Senate’s attention now.

Does the Senate have an argument to make for impeaching Kavanaugh? Although the term “high Crimes and Misdemeanors” is not exactly a model for the kind of precise drafting that contemporary law requires, it’s clear enough to exclude certain kinds of cases that Kavanaugh’s most vociferous opponents might want to make against him. The raging, partisan screed that served as his opening statement last week has many questioning his judicial temperament, but that’s a problem to consider before giving him a lifetime appointment—not grounds for removal, even if he dials the anger up to 11 once he’s on the bench. Similarly, even if he immediately becomes the fifth vote to overrule Roe v. Wade, well, that’s too bad for those hoping to oust him—even if he dissembled about how he might rule on abortion during the confirmation process. Justices are free to rule as they wish, no matter what they might have indicated (or, increasingly, refused to indicate) during questioning.

The one case involving the Supreme Court supports the conclusion that sitting justices should not be removed from office for anything but the most serious criminal conduct. In the Samuel Chase case, President Thomas Jefferson led the call for impeachment, ostensibly because of rulings Chase had made while sitting on a lower court—but really because he had sharply criticized the president in connection with one proceeding, before a grand jury. (Chase famously opposed Jefferson during his presidential run, at one point leaving the bench without a quorum in order to “canvass Maryland” against him.) The Senate could muster only a bare majority (19-15) for his removal, rather than the required two-thirds, and the template against this kind of political removal was thereby set.

But the cases involving trial and appellate federal judges point in a direction that would be worrying for Kavanaugh if he’s installed as a justice—and if wrongful conduct is then found. Significantly, three of the four most recent impeachments— all of which led to convictions—were for perjury. In the other case, Samuel B. Kent, a district court judge from Texas, became the first federal judge impeached for sexual assault, and for obstructing justice in being untruthful about his conduct. He was convicted and sentenced to 33 months in prison, but refused to resign (apparently for reasons having to do with his pension). In 2009, he was impeached by the House, but resigned before the Senate could conduct the trial that certainly would have convicted him.

Will a newly energized Democratic majority in the House have the stomach for impeachment? Majority Leader Nancy Pelosi has demurred, but Jerrold Nadler, the current ranking member of the House Judiciary Committee, wasn’t nearly as coy. When asked whether, if he assumed the chairmanship of the committee, he’d consider impeachment, he had this to say: “We would have to investigate any credible allegations of perjury and other things that haven’t been properly looked into before.”

So hearings seem inevitable, but whether the committee would actually take the extraordinary step of beginning impeachment proceedings will likely depend on a few factors yet to come into focus. The real or perceived lack of thoroughness of the FBI investigation would be the most obvious trigger. If the FBI failed to interview the witnesses suggested by yet another alleged assault victim, Deborah Ramirez, for instance, hearings will likely follow—and then, possibly, impeachment, depending on what’s turned up. And, as Nadler suggested, the committee could also look into whether Kavanaugh committed perjury during the hearings; for instance, text messages have surfaced suggesting that he knew of Ramirez’s potential allegations before the New Yorker told her story. He testified, though, that he only learned of the accusations when the story came out. State governments might also decide to conduct hearings, which could funnel into any action the House decides to take. And if any new sexual misconduct allegations surface after he’s seated, we’re back to square one.

But while Kavanaugh should be worried about impeachment proceedings, so too should GOP senators who vote to confirm him in the first place. If further interviews with some of the same witnesses that the FBI could have, but did not, question corroborate any of the assault allegations, Kavanaugh could land back in the Senate for a trial, where those senators who voted for him would find themselves in a tough spot for pushing him through in the face of unanswered questions. Even if there weren’t enough votes to convict him, the political problems raised by a trial could be another matter entirely.

In any case, it’s probably too much to hope that the end of the FBI investigation will put this all to rest. We may or may not learn what the FBI actually did, but it’s likely the last chapter in this depressing saga has yet to be written.

John Culhane is distinguished professor of law at Delaware Law School, where he teaches courses in constitutional and family law.